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Weekly Update Volume 40, Issue 4

02/01/2010

LITIGATION

CWA, WETLANDS, MINING PERMITS:

The Eleventh Circuit affirmed a lower court decision vacating CWA §404 permits the U.S. Army Corps of Engineers issued to several limestone mining corporations in Florida's Lake Belt region. Before the Corps may issue a §404 permit, it must define the project's basic purpose and determine whether that basic purpose is "water dependent." Here, the Corps' decision that the mining project's basic purpose was water dependent was arbitrary under the APA. The extraction of limestone in general is not water dependent, as mining limestone does not always require that the mine be located in a wetland. Although limestone mining requires that the mine sit where the limestone deposits are located--in this case, wetlands--the Corps did not define the basic purpose of this project as the mining of limestone in the Lake Belt area. It merely stated that the basic purpose was to extract limestone in general. By finding that the project was water dependent, the Corps failed to apply the presumption that practicable alternatives to mining limestone in the Lake Belt are available and did not shift the burden to the mining companies to clearly demonstrate that there are no practicable alternatives to mining in the area. This procedural failure by the Corps mars its subsequent determination regarding the availability of practicable alternatives in violation of its own regulations.Sierra Club v. Van Antwerp, No. 09-10877, 40 ELR 20025 (11th Cir. Jan. 21, 2010).

FIFRA, JURISDICTION:

The Ninth Circuit affirmed a lower court decision that it lacked jurisdiction over an action challenging an EPA order permitting certain uses of the pesticide Azinphos-Methyl. The cardinal condition for district court jurisdiction under FIFRA §16(a) is that the Administrator of EPA had made a decision "not following a hearing." If a hearing has been held, no jurisdiction exists in the district court. Here, the Administrator did hold a hearing. Accordingly, review should have been sought before the appellate courts under FIFRA §16(b). Unfortunately, the appeal was filed after the statute's 60-day deadline passed.United Farm Workers of America, AFL-CIO v. Environmental Protection Agency, No. 08-35528, 40 ELR 20022 (9th Cir. Jan. 22, 2010).

APA, PUBLIC LANDS, WILDERNESS:

The Ninth Circuit upheld a lower court decision dismissing environmental groups' lawsuit against the U.S. Forest Service in connection with its management of the Hells Canyon National Recreation area, which straddles the border of Oregon and Idaho. The groups argued the Forest Service violated the Hells Canyon Act by failing to produce or otherwise provide the original 1978 map of the area as required by statute. The groups, however, lack standing. Although the Forest Service concedes that it lost the map, it has already addressed this injury by making copies of the map available to the public, and general displeasure with the Forest Service's failure to comply with its statutory duties is not enough to establish injury under Article III. Moreover, the original map is lost, and no remedy can alter that fact. The groups also argued that the Forest Service's description of the wilderness boundary was arbitrary and capricious in violation of the APA. But their challenge was time barred. It has been apparent since at least 1992 that the hydrologic divide did not always establish the western boundary of the area, as contemplated by the groups. Last, the groups claimed that Forest Service's failure to close portions of a trail to motorized vehicle use was an ongoing failure to act. But the groups failed to identify a discrete agency action that the Forest Services is required to take. Accordingly, it failed to state a claim under the APA.Hells Canyon Preservation Society v. United States Forest Service, No. 07-35456, 40 ELR 20023 (9th Cir. Jan. 25, 2010).

ENERGY, NATURAL GAS PIPELINES:

The D.C. Circuit ordered FERC to reconsider its reporting rules for interstate natural gas pipelines. During the public comment period, petitioners--a national trade association of gas utility companies--requested additional and more detailed reporting requirements for shipper-supplied gas for pipeline operations, but FERC declined to adopt their request. Petitioners now argue that FERC failed to engage in reasoned decisionmaking and offered only conclusory and unsupported explanations. Because FERC failed to respond to the reasonable concerns of a dissenting Commissioner, the petition was granted. Although FERC is not required to agree with arguments raised by a dissenting Commissioner, it must, at a minimum, acknowledge and consider them. On remand, FERC may again conclude the burdens of the additional reporting requirements requested by petitioner outweigh the benefits, but it must do so in a reasoned decision that acknowledges the concerns raised by the dissenting Commissioner.American Gas Ass'n v. Federal Energy Regulatory Commission, No. 08-1266, 40 ELR 20024 (D.C. Cir. Jan. 22, 2010).

RCRA, JURISDICTION, CITIZEN SUITS

A district court denied environmental groups’ motion for partial summary judgment with respect to their claim that the United States’ maintenance of the Suisun Bay Reserve Fleet violated EPA’s surface water criterion regulations promulgated pursuant to §4004(a) of RCRA. Although the United States conceded that each vessel of its fleet was discharging pollutants into navigable waters without a NPDES permit, it argued that the environmental groups were not authorized to bring a citizen suit under the surface water criterion because such criterion was only enforceable by states. The court agreed, finding that amendments made to the applicable 1981 EPA regulations precluded citizen suits and nothing in the 1996 amendments indicated any substantive change to the regulations. The court therefore lacked citizen suit jurisdiction over the claim.Arc Ecology v. U.S. Maritime Administration, No. 2:07-cv-2320, 40 ELR 20026 (E.D. Cal. Jan. 20, 2010) (Burrell, Jr., J.).

CERCLA, PRP, INTERVENTION

A district court granted the motion of two non-settling PRPs to intervene to challenge a proposed consent decree, which was lodged by EPA to resolve CERCLA liability of a settling PRP, on the grounds that the non-settling PRPs have a significantly protectable interest to support intervention as a right. Under the terms of the consent decree, the non-settling PRPs were barred from seeking contribution from the settling PRP. The court found that the right of contribution held by the non-settling PRPs, although not certain, was a valuable interest that they would lose if the court entered the proposed consent decree without providing them an opportunity to be heard. The court further held that the policy and legislative intent of CERCLA need not be considered since the statute was unambiguous and could be read as a whole without reaching a result at odds with the intention of its drafters.U.S. v. ExxonMobil Corp., No. 1:08CV124, 40 ELR 20028 (N.D.W. Va. Jan. 15, 2010) (Keeley, J.).

RCRA, SUMMARY JUDGMENT

A district court denied in part and granted in part motions of a plaintiff insurer and defendant gasoline service station operator for partial summary judgment with respect to claims arising under RCRA and the Texas Solid Waste Disposal Act (SWDA). The insurer alleged that gasoline from a gasoline service station operated by defendant had leaked on to property that it insured. In its suit, plaintiff sought, among other things, (1) an injunction under §7002(a)(1)(B) RCRA requiring defendant to investigate and remediate the waste on the insured property; and (2) reimbursement of its investigation and remediation costs under SWDA. In considering the injunction, because the available evidence indicated that hazardous contaminants exceeded state limits on the insured propertyat the time of suit, there was a genuine issue of material fact as to whether the contamination presented an imminent and substantial endangerment to health or the environment. Therefore, summary judgment was denied on this claim. With respect to reimbursement costs, the defendant argued that, in order to be reimbursed, plaintiff must show that the response costs were attributable to contamination migrating from the gasoline service station, rather than from existing contamination at the property. The court disagreed, finding that although causation is relevant to apportionment of costs, it is not an element of a SWDA claim. Under Texas law, contamination alone is sufficient to show that cleanup costs are necessary.American International Specialty Lines Insurance Co. v. 7-Eleven, Inc., No. 3:08-cv-807-M, 40 ELR 20027 (N.D. Tex. Jan. 19, 2010) (Lynn, J.).

TORT LAW, CORPORATE OFFICER LIABILITY

The Supreme Court of Vermont reversed and remanded a lower court’s decision that granted a corporate officer’s motion to dismiss the complaint of a property owner for trespass and nuisance. Contrary to the lower court's decision, the complaint alleged facts sufficient to find liability. The property owner alleged that the corporate officer was responsible for the corporation’s decisions regarding the maintenance and control of an asbestos mine tailings pile, the runoff from which contaminated his property. Because the amended complaint included allegations that the corporate officer had personally participated in the alleged tortuous actions, the property owner had stated a claim upon which relief could be granted.Prive v. Vermont Asbestos Group, No. 2008-474, 40 ELR 20029 (Vt. Jan. 15, 2010).

SIP Withdrawal: California (new source review and operating permit rules for the San Joaquin Valley unified air pollution control district; see above for new proposed rule)75 FR 4759(1/29/10).

HAZARDOUS & SOLID WASTE:

EPA entered into a proposed administrative cost recovery settlement under CERCLA that requires the respondents to pay $600,000 in U.S. response costs incurred at the T.H. Agriculture and Nutrition LLC former Superfund site in Fresno, California.75 FR 4071(1/26/10).

EPA determined that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the waters of Camden, Rockport, Rockland, and portions of Owls Head, Maine.75 FR 4379(1/27/10).

EPA proposed numeric nutrient water quality criteria and a framework for restoration standards to protect aquatic life in lakes and flowing waters in Florida.75 FR 4174(1/26/10).

DOJ NOTICES OF SETTLEMENT:

United States America v. Westar Energy, Inc., No. 2:09-CV-2059-JAR-DJW (D. Kan. Jan. 25, 2010). A settling CAA defendant must pay a $3 million civil penalty for violation of PSD and NSR standards at its coal-fired power plant near St. Marys, Kansas, must reduce sulfur dioxide, nitrogen oxide, and PM emissions at the facility, and must spend $6 million on environmental mitigation projects.75 FR 4847(1/29/10).

United States v. Saint-Gobain Containers, Inc., No. 2:10-cv-00121-TSZ (W.D. Wash. Jan. 21, 2010). A settling CAA defendant must pay a $2,250,000 civil penalty, must implement substantial injunctive relief to reduce pollution at its manufacturing facilities across the country, and must install controls and continuous emission monitors at each of its facilities, at an estimated capital cost of at least $112 million.75 FR 4105(1/26/10).

United States v. Pacific Pipeline Systems, LLC, No. CV08-5768 DSF (C.D. Cal. Jan. 20, 2010). A settling CWA defendant must pay a $1.3 million civil penalty for the discharge of approximately 3,393 barrels of crude oil from a pipeline and must permanently purge and remove all oil from the pipeline; the pipeline could be reopened under certain conditions.75 FR 4106(1/26/10).

H.R. 3726 (Castle Nugent National Historic Site Establishment Act of 2010), which would establish the Castle Nugent National Historic Site at St. Croix, United States Virgin Islands, was passed by the House. 156 Cong. Rec. H393 (daily ed. Jan. 27, 2010).

H.R. 4474 (Idaho Wilderness Water Facilities Act), which would authorize the continued use of certain water diversions located on National Forest System land in the Frank Church-River of No Return Wilderness and the Selway-Bitterroot Wilderness in the State of Idaho, was passed by the House. 156 Cong. Rec. H403 (daily ed. Jan. 27, 2010).

H. Res. 1020 (Honoring the anniversary of the Rocky Mountain National Park Act), which would honor the 95th anniversary of the signing of the Rocky Mountain National Park Act, was passed by the House. 156 Cong. Rec. H401 (daily ed. Jan. 27, 2010).

Committee Action

S. Res. 275 (national parks)was reported by the Committee on Energy and Natural Resources. 156 Cong. Rec. S340 (daily ed. Jan. 28, 2010). The resolution would honor the Minute Man National Historical Park on the occasion of its 50th anniversary.

S. 2966 (Risch, R-Idaho) (water)would authorize the continued use of certain water diversions located on National Forest System land in the Frank Church-River of No Return Wilderness and the Selway-Bitterroot Wilderness in the State of Idaho. 156 Cong. Rec. S340 (daily ed. Jan. 28, 2010). The bill was referred to the Committee on Energy and Natural Resources.

H.R. 4509(Schrader, D-Or.) (land)would reauthorize the national small business tree planting program. 156 Cong. Rec. H386 (daily ed. Jan. 26, 2010). The bill was referred to the Committee on Small Business.

H.R. 4514 (Clay, D-Mo.) (national parks)would authorize the Secretary of the Interior to conduct a special resource study to determine the suitability and feasibility of designating the Colonel Charles Young Home in Xenia, Ohio as a unit of the National Park System. 156 Cong. Rec. H386 (daily ed. Jan. 26, 2010). The bill was referred to the Committee on Natural Resources.

H.R. 4521 (Markey, D-Mass.) (oil and gas leases)would authorize the Secretary of the Interior to agree to requests by lessees to amend certain oil and gas leases issued for Central and Western Gulf of Mexico tracts, to incorporate price thresholds applicable to royalty suspension provisions. 156 Cong. Rec. H386 (daily ed. Jan. 26, 2010). The bill was referred to the Committee on Natural Resources.

Note: The entries below cover state developments since the last issue of Update. The entries are arranged by state, and within each section, entries are further subdivided by subject matter area. To access material previously reported in 2010, visit our list ofCumulative State Developments. For state material reported prior to 2010, visit theELR Archives.

The Pollution Control Board seeks public comment on proposed amendments to Ill. Admin. Code tit. 35, §739, Standards for the Management of Used Oil; 35 Ill. Adm. Code 808, Special Waste Classifications; and 35 Ill. Adm. Code 809, Nonhazardous Special Waste Hauling and the Uniform Program. The amendments would exempt used oil from the special waste manifest requirements and amend used oil tracking provisions. Seehttp://www.cyberdriveillinois.com/departments/index/register/register_volume34_issue4.pdf(pp. 1257-87)

MAINE

Hazardous & Solid Waste:

The Department of Environmental Protection will hold a public hearing on proposed amendments to Code Me. R. § 400, Solid Waste Management Rules General Provisions; Code Me. R. § 401, Landfill Disposal Facilities; and Code Me. R. § 409, Processing Facilities. The amendments would establish standards and requirements related to the use of residuals from the processing of construction and demolition debris as cover or grading material in landfills, the requirements of solid waste processing facilities to recycle or reuse wastes accepted at the facility to the maximum extent practicable and in no case less than 50%, and the definition of "residual". The hearing will be February 18, 2010. Seehttp://www.maine.gov/dep/rwm/rules/rulemaking.htm

MASSACHUSETTS

Air:

The Department of Environmental Protection has adopted amendments to 310 Mass. Code Regs. 7.24(9), Dispensing of E85 Motor Vehicle Fuel/Ethanol Blends. The rules clarify for potential owners/operators of E85 dispensing facilities the types of vapor controls required for the dispensing of E85. Seehttp://www.mass.gov/dep/air/laws/regulati.htm#e85

Water:

The Department of Environmental Protection has adopted 310 Mass. Code Regs. 22.00, Massachusetts Drinking Water Regulations. These amendments include one new rule, the Ground Water Rule (GWR), and minor revisions and corrections to the Lead and Copper Rule (LCR). The GWR is intended to increase protection against potential viral contamination in public water systems. The majority of public water supplies will be required to test their source water and if necessary install or increase treatment. LCR revisions include changes to content and delivery of public education materials, compliance calculations, and monitoring and reporting requirements. The GWR applies to all public water systems using ground water sources and the LCR applies to all community and non-transient non-community systems. Seehttp://www.mass.gov/dep/water/laws/regulati.htm#dw

MINNESOTA

Fisheries

The Department of Natural Resources has adopted Minn. R. 17.4981, 17.4988, and 97A.475, Aquatic Farm and Private Fish Hatchery. The rules establish aquatic farming license fees based on acreage of the operation and for inspection and certification services. Seehttp://www.comm.media.state.mn.us/bookstore/stateregister/34_30.pdf(pp. 1021-22)

The Environmental Commission has adopted amendments to Nev. Admin. Code § 445B.460, relating to vehicle emissions. The amendments require a test station and an approved inspector to obtain a license with a “D” rating to test the exhaust emissions of certain heavy-duty motor vehicles that are powered by diesel engines, require the equipment for the measurement of smoke opacity from those motor vehicles to include a dynamometer and a smoke opacity meter, make changes concerning the procedure for testing those motor vehicles; and specify the standards for exhaust emissions that are applicable to a reconstructed vehicle and a trimobile. Seehttp://www.leg.state.nv.us/register/2009Register/R130-09A.pdf

The Environmental Commission has adopted amendments to Nev. Admin. Code § 445B.3363, relating to air quality. The amendments revise provisions relating to applications for Class I operating permits to construct and Class I operating permits which are submitted by certain sources of air pollutants. Seehttp://www.leg.state.nv.us/register/2009Register/R147-09A.pdf

NEW MEXICO

Air:

The New Mexico Environmental Improvement Board will hold a public hearing on proposed revisions to N.M. Code R. § 20.2.1, Air Quality Control Regulations. The purpose of the revisions is to comply with guidance issued by the U.S. Environmental Protection Agency regarding the use of significant figures for calculating and reporting emission rates and concentrations when determining compliance with state and federal emission standards. The hearing will be April 5, 2010. Seehttp://www.nmcpr.state.nm.us/nmregister/xxi/xxi02/EIBnotice.htm

Water:

The New Mexico Water Quality Control Commission will hold a public hearing on proposed amendments to N.M. Code R. § 20.6.2, Dairy Rules. The proposed rules would add definitions, notice, permitting, engineering, operating, monitoring, contingency, closure, record retention, transfer and transition provisions for the dairy industry. The hearing will be April 13, 2010. Seehttp://www.nmcpr.state.nm.us/nmregister/xxi/xxi02/waterQualnotice.htm

Invasive alien species, ranging from disease and plants to rats and goats, are one of the top three threats to life on this planet, according to a new publication coordinated by the Global Invasive Species Programme (GISP). Most countries have made international commitments to tackle this threat, but only half have introduced relevant legislation and even fewer are taking adequate action on the ground. The publication, “Global indicators of biological invasion: species numbers, biodiversity impact and policy responses,” looked at 57 countries and found that, on average, there are 50 non-indigenous species per country that have a negative impact on biodiversity. The number of invasive alien species ranged from 9 in Equatorial Guinea to 222 in New Zealand. For the full story, visithttp://www.iucn.org/media/materials/releases/?4561/Impact-of-natures-invading-aliens-measured-for-first-time

ECONOMIC GROWTH 'CANNOT CONTINUE'

Continuing global economic growth "is not possible" if nations are to tackle climate change, a report by an environmental think-tank has warned. The New Economics Foundation (Nef) said "unprecedented and probably impossible" carbon reductions would be needed to hold temperature rises below 2C (3.6F). Scientists say exceeding this limit could lead to dangerous global warming. "We urgently need to change our economy to live within its environmental budget," said Nef's Policy Director,Andrew Simms, who added: "There is no global, environmental central bank to bail us out if we become ecologically bankrupt." None of the existing models or policies could "square the circle" of economic growth with climate safety, Nef added. For the full story, visithttp://news.bbc.co.uk/2/hi/science/nature/8478770.stm

INTEREST IN VOLUNTARY CARBON CREDITS PICKS UP

Carbon offset retailers and brokers have seen increased interest in and demand for voluntary carbon credits this month, particularly from the United States. "Since this year started we have seen a huge amount interest -- mostly from the U.S. -- in carbon credits and it won't be long before the voluntary market worldwide begins really to gain some momentum," said Matthew Sullivan, chief executive of carbon offset retailer the Carbon Advice Group. The unregulated voluntary market operates outside mandatory emissions cut schemes such as the United Nations' Clean Development Mechanism or the European Union's Emissions Trading Scheme. It relies on businesses to self-regulate their carbon emissions in the absence of a legally binding climate agreement and individuals' need to offset their carbon footprint. Brokers MF Global saw an increase in demand for Voluntary Carbon Standard (VCS) and Gold Standard credits this month. "Interest in pure-VCS credits, particularly from U.S. buyers, has increased markedly, " it said in a brokers' note. For the full story, seehttp://www.reuters.com/article/idUSTRE60Q2ZH20100127